United States v. Garcia-Ramirez , 110 F. App'x 447 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 21, 2004
Charles R. Fulbruge III
Clerk
No. 04-40015
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE CONCEPCION GARCIA-RAMIREZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:03-CR-249-ALL
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Before JOLLY, JONES, and WIENER, Circuit Judges.
PER CURIAM:*
Jose Concepcion Garcia-Ramirez (Garcia) pleaded guilty to
one count of illegal reentry into the United States. The
district court sentenced him to 24 months in prison and a three-
year term of supervised release. Garcia argues that the district
court erred by characterizing his state felony conviction for
possession of a controlled substance as an aggravated felony for
purposes of U.S.S.G. § 2L1.2(b)(1)(C), because that same offense
is punishable only as a misdemeanor under federal law. This
issue, however, is foreclosed. See United States v. Caicedo-
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 04-40015
-2-
Cuero, 312 F.3d 697, 706-11 (5th Cir. 2002), cert. denied, 538
U.S. 1021 (2003); United States v. Hinojosa-Lopez, 130 F.3d 691,
693-94 (5th Cir. 1997). Thus, Garcia fails to show that the
district court erred by characterizing his state conviction as an
aggravated felony for U.S.S.G. § 2L1.2(b)(1)(C) purposes and by
sentencing him accordingly.
Garcia argues that 8 U.S.C. § 1326(b) is unconstitutional on
its face and as applied in his case because it does not require
the fact of a prior felony or aggravated felony conviction to be
charged in the indictment and proved beyond a reasonable doubt.
This argument is foreclosed by Almendarez-Torres v. United
States, 523 U.S. 224 (1998). See United States v. Dabeit, 231
F.3d 979, 984 (5th Cir. 2000). Garcia’s conviction and sentence
are AFFIRMED.
The parties agree, and the record reflects, that the
indictment against Garcia charged him with attempted illegal
reentry into the United States after deportation and that he
pleaded guilty to that charge but that the judgment states that
Garcia was convicted of reentry of a deported alien. The case is
REMANDED for the limited purpose of correcting the judgment to
reflect that Garcia was convicted of attempted illegal reentry.
See FED. R. CRIM. P. 36; see United States v. Powell, 354 F.3d
362, 371-72 (5th Cir. 2003).
CONVICTION AND SENTENCE AFFIRMED; REMANDED FOR CORRECTION OF
CLERICAL ERROR IN JUDGMENT.